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CASE NO.: Appeal (civil)  992 of 2008

PETITIONER: Smt. Bachahan Devi & Anr

RESPONDENT: Nagar Nigam, Gorakhpur & Anr

DATE OF JUDGMENT: 05/02/2008

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO 992 OF 2008 (Arising out of S.L.P (C) No. 24576 of 2004)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by learned  Single Judge of the Allahabad High Court setting aside the  order passed by the First Appellate Court, and directing it to  take decision on merit.

3.      Essential facts are as follows:          Respondent no.1 as plaintiff no.1 along with one Gabbu  filed Suit No.23 of 1960 for declaration that the land in  dispute belongs to it and the defendants have no concern with  the property.  Assertion was that the property in question had  vested in it in view of the notification issued by the State  Government after abolition of Zamindari.  The suit was  decreed on 17.1.1972. The trial court granted relief of  permanent injunction in respect of suit property as described  in the Schedule and also declared that plaintiff no.1 is the  owner of the said plot.  The decree was challenged by way of  appeal by the appellants. During the pendency of the appeal,  an application to amend the written statement was allowed by  the Appellate Court.  Thereafter certain additional issues were  framed.  The Appellate Court was of the view since the written  statement had been amended during the pendency of the  appeal, the matter should be remanded to the trial court for  fresh decision.  Challenging the order passed, an appeal was  filed by respondent no.1 before the High Court.  Stand of the  plaintiff no.1 before the High Court was that the Appellate  Court committed an illegality in remanding the matter for  fresh consideration.  It was submitted that the Appellate Court  could have exercised its discretion under Order XLI Rule 25 of  the Code of Civil Procedure, 1908 (in short ’the Code’) and it  could have recorded evidence itself. It was the opinion that the  same was necessary for disposal of the appeal.  

4.      Stand of the defendants on the contrary was that two  courses were available to the Appellate Court.  First was to  pass the remand order after setting aside the findings.  The  said course has been adopted.  The other course was to call for  findings on the issue by remitting it to the trial court.  The  High Court was of the view that the order of remand should be

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passed rarely and in the instant case that was not the case.   That being so, the High Court set aside the order of the First  Appellant Court and the matter was remanded to it for  decision of the appeal on merit.   

5.      Learned counsel for the appellant submitted that the true  scope and ambit of order XLI Rule 25 has been improperly  pressed into service. In the background of the factual position,  the order of the High Court cannot be maintained.  The High  Court, however, noted that if the Appellate Court is of the  opinion that the evidence is insufficient, the matter may be  remanded to the trial court for recording evidence in terms of  Order XLI Rule 25 of the Code.

6.      In response, learned counsel for the respondent  submitted that it will not be in the interest of the parties to go  on litigating and for that purpose the only course which was  available has been adopted.  Strong reliance was placed on a  decision of this Court in Pasupuleti Venkateswarlu v. The  Motor and General Traders (1975 (1) SCC 770).    

7.      Order XLI Rule 25 of the Code reads as follows: "ORDER XLI: APPEALS FROM ORIGINAL  DECREES  25. Where Appellate Court may frame issues  and refer them for trial to Court whose decree  appealed from.--Where the Court from whose  decree the appeal is preferred has omitted to  frame or try any issue, or to determine any  question of fact, which appears to the  Appellate Court essential to the right decision  of the suit upon the merits, the Appellate  Court may, if necessary, frame issues, and  refer the same for trial to the Court from  whose decree the appeal is preferred, and in  such case shall direct such Court to take the  additional evidence required; and such Court  shall proceed to try such issues, and shall  return the evidence to the Appellate Court  together with its findings thereon and the  reasons therefor [within such time as may be  fixed by the Appellate Court or extended by it  from time to time]."   8.       There is no scope for any doubt that in a suit as well as  the first appeal all disputed facts are open for decision. A point  of fact is not to be decided in second appeal where only a  substantial question of law is to be looked into. There is some  amount of controversy as to whether the provisions are  mandatory, notwithstanding the fact that the word ’may’ has  been used.  The First Appellate Court is the last Court of facts.

9       Under Order XLI Rule 25, if it appears to the Appellate  Court that any fact essential for the decision in the suit was to  be determined, it could frame an issue on the point and refer  the same for trial, to the Court from whose decree the appeal  is preferred and in such case, shall direct such court to take  additional evidence required.   The order of remand should not  be passed as a matter of routine.  The First Appellate Court  which has the power to analyse the factual position can decide  the issue and the additional issues.  In the instant case the  First Appellate Court, inter alia, observed as follows:

"As such, it would not be proper for the first  Appellate Court in such matter to itself record

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the evidence and to give its findings in regard  to newly created issues. The Hon’ble High  Court has also held that in the present matter  under the provision of Order 41 Rule 25 of  Civil Procedure Code, becomes mandatory  (shall) though in this provision, the word ’may’  has been used.  No doubt in the present  matter also the Appellate Court has framed 6  additional issues which are legal in nature and  also factual, with the result if the Appellate  Court gives its findings relating to said legal  and factual issues after itself recording  (receiving) evidence then the aggrieved party  would be prevented from his right of filing first  appeal.  Accordingly, the aforesaid ratio laid  down by the Hon’ble High Court is fully  applicable in the present matter."       

10      A bare reading of the provision makes it clear that the  same comes into operation when the Court, from whose decree  the appeal is preferred, has omitted to frame or try and issue,  or to determine any question of fact which appears to the  appellate court essential for the right decision of the suit upon  the merits.  In order to bring in application of Order XLI Rule  25 the appellate court must come to a conclusion that the  lower court has omitted to frame issues and/or has failed to  determine any question of fact which in the opinion of the  appellate court are essential for the right decision of the suit  on merits.  Once the appellate court comes to such a  conclusion it may, if necessary, frame the issues and refer the  same to the trial court. In other words there is no compulsion  on the part of the appellate Court to do so.  This is clear from  the use of the expression ’may’.  But the further question that  arises is whether in such a case the appellate court is bound  to direct the trial court to take additional evidence required.   This is a mandatory requirement as is evident from the  provision itself because it provides that the lower court shall  proceed to try such case and shall return the evidence to the  appellate court together with findings therein and the reasons  therefor.  As noted above, the provision becomes operative  when the appellate court comes to the conclusion about the  omission on the part of the lower court to frame or try any  issue.  Once the appellate court directs the lower court to do  so, it is incumbent upon the trial court to take additional  evidence required.  As has been rightly contended by learned  counsel for the appellant, there may be cases where additional  evidence may not be required.  But where the additional  evidence is required, then the lower court has to return the  evidence so recorded to the appellate court together with the  findings thereon and the reasons therefor.  Requirement for  recording the finding of facts and the reasons disclosed from  the facts is because the appellate court at the first instance  has come to the conclusion that the lower court has omitted to  frame or try any issue or to determine any question of fact  material for the right decision of the suit on merits.  It has to  be noted that where a finding is called for on the basis of  certain issues framed by the appellate court, the appeal is not  disposed of either in whole or in part. Therefore the parties  cannot be barred from arguing the whole appeal after the  findings are received from the court of the first instance. This  position was highlighted in Gogula Gurumurthy and Others v.  Kurimeti Ayyappa (1975(4) SCC 458), where it was inter-alia  observed in para 5 as follows: "We consider that when a finding is called  for on the basis of certain issues framed by the

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appellate Court the appeal is not disposed of  either in whole or in part.  Therefore the  parties cannot be barred from arguing the  whole appeal after the findings are received  from the court of first instance.  We find the  same view taken in Gopi Nath Shukul v. Sat  Narain Shukul (AIR 1923 All 384)."

11.     The delicate question that remains to be examined is  what is the position in law when both the expression "shall"  and "may" are used in the same provision.  12.  Mere use of word ’may’ or ’shall’ is not conclusive. The  question whether a particular provision of a statute is  directory or mandatory cannot be resolved by laying down any  general rule of universal application. Such controversy has to  be decided by ascertaining the intention of the Legislature and  not by looking at the language in which the provision is  clothed. And for finding out the legislative intent, the Court  must examine the scheme of the Act, purpose and object  underlying the provision, consequences likely to ensue or  inconvenience likely to result if the provision is read one way  or the other and many more considerations relevant to the  issue. 13.      Several statutes confer power on authorities and officers  to be exercised by them at their discretion. The power is in  permissive language, such as, ’it may be lawful’, ’it may be  permissible’, ’it may be open to do’, etc. In certain  circumstances, however, such power is ’coupled with duty’  and must be exercised. 14.     More than a century ago, in Baker, Re, (1890) 44 Ch D  262, Cotton, L.J. stated; I think that great misconception is caused by  saying that in some cases ’may’ means ’must’.  It never can mean ’must’, so long as the  English language retains its meaning; but it  gives a power, and then it may be question  in what cases, where a Judge has a power  given by him by the word ’may’, it becomes  his duty to exercise it. (emphasis supplied) 15.      In the leading case of Julius v. Lord Bishop of Oxford  (1880) 5 AC 214:49 LJ QB 580:(1874-80) All ER Rep 43 (HL),  the Bishop was empowered to issue a commission of inquiry in  case of alleged misconduct by a clergyman, either on an  application by someone or suo motu. The question was  whether the Bishop had right to refuse commission when an  application was made. The House of Lords held that the  Bishop had discretion to act pursuant to the complaint and no  mandatory duty was imposed on him. 16.      Earl Cairns, L.C., however, made the following  remarkable and oft-quoted observations: "The words ’it shall be lawful’ are not  equivocal. They are plain and unambiguous.  They are words merely making that legal and  possible which there would otherwise be no  right or authority to do. They confer a faculty  or power and they do not of themselves do  more than confer a faculty or power. But there  may be something in the nature of the  thing empowered to be done, something in  the object for which it is to be done,  something in the title of the person or  persons for whose benefit the power is to  be exercised, which may couple the power  with a duty, and make it the duty of the

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person in whom the power is reposed, to  exercise that power when called upon to do  so." 17.      Explaining the doctrine of power coupled with duty, de  Smith, (’Judicial Review of Administrative Action’, 1995;  pp.300-01) states: "Sometimes the question before a court is  whether words which apparently confer a  discretion are instead to be interpreted as  imposing duty. Such words as ’may’ and ’it  shall be lawful’ are prima facie to be construed  as permissive, not imperative. Exceptionally,  however, they may be construed as  imposing a duty to act, and even a duty to  act in one particular manner." (emphasis supplied) 18.      Wade also says (Wade & Forsyth; ’Administrative Law:  9th Edn.): p.233): "The hallmark of discretionary power is  permissive language using words such as ’may’  or ’it shall be lawful’, as opposed to obligatory  language such as ’shall’. But this simple  distinction is not always a sure guide, for there  have been many decisions in which permissive  language has been construed as obligatory.  This is not so much because one form of  words is interpreted to mean its opposite,  as because the power conferred is, in the  circumstances, prescribed by the Act,  coupled with a duty to exercise it in a  proper case." (emphasis supplied) 19.      In the leading case of Padfield v. Minister of Agriculture,  Fisheries & Food 1968 AC 997 : (1968) 1 All ER 694 : (1968) 2  WLR 924 (HL), the relevant Act provided for the reference of a  complaint to a committee of investigation ’if the Minister so  directs’. The Minister refused to act on a complaint. It was  held that the Minister was required to act on a complaint in  absence of good and relevant reasons to the contrary. 20.      Likewise, it was held that the licensing authorities were  bound to renew licences of cab drivers if the prescribed  procedural requirements had been complied with [R.v.  Metropolitan Police Commissioner (1911) 2 QB 1131]. Similarly,  local authorities were held bound to approve building plans if  they were in conformity with bye-laws [R.V. Nescastle-upon- Tyne Corporation (1889) 60 LT 963]. Again, the court was  required to pass a decree for possession in favour of a  landlord, if the relevant grounds existed [Ganpat Ladha v.  Shashikant (1978 (2) SCC 573).  21.      In Alcock v. Chief Revenue Authority 50 IA 227 : AIR  1923 PC 138, the relevant statute provided that if in the  course of any assessment a question arises as to the  interpretation of the Act, the Chief Revenue Authority ’may’  draw up a statement of the case and refer it to the High Court.  Holding the provision to be mandatory and following Julius,  Lord Phillimore observed: "When a capacity or power is given to a public  authority, there may be circumstance which  couple with the power of duty to exercise it."

22.      In Commissioner of Police v. Gordhandas Bhanji (1952 (1)  SCR 135), Rule 250 of the Rules for Licensing and Controlling  Theatres and Other Places of Public Amusement in Bombay  City, 1884 read as under: "The Commissioner shall have power in his

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absolute discretion at any time to cancel or  suspend any licence granted under these  Rules." 23.      It was contended that there was no specific legal duty  compelling the Commissioner to exercise the discretion. Rule  250 merely vested discretion in him but it did not require him  to exercise the power. Relying upon the observations of Earl  Cairns, L.C., the Court observed: "The discretion vested in the Commissioner of  Police under Rule 250 has been conferred  upon him for public reasons involving the  convenience, safety, morality and the welfare  of the public at large. An enabling power of  his kind conferred for public reasons and  for the public benefit is, in our opinion,  coupled with a duty to exercise it when the  circumstances so demand. It is a duty  which cannot be shirked or shelved nor  can it be evaded.... " (emphasis supplied) 24.      In Ratlam Municipality v. Vardichan (1980 (4) SCC 162),  some residents of Ratlam Municipality moved the Sub- Divisional Magistrate under Section 133 of the Code of  Criminal Procedure, 1973 for abatement of nuisance by  directing the municipality to construct drain pipes with flow of  water to wash the filth and stop the stench. The Magistrate  found the facts proved and issued necessary directions. The  Sessions Court, in appeal, reversed the order. The High Court,  in revision, restored the judgment of the Magistrate and the  matter was carried to the Supreme Court. 25.      This Court summarized the principle thus: "The key question we have to answer is  whether by affirmative action a court can  compel a statutory body to carry out its duty  to the community by constructing sanitation  facilities at great cost and on a time-bound  basis. At issue is the coming of age of that  branch of public law bearing on community  actions and the court’s power to force public  bodies under public duties to implement  specific plans in response to public  grievances."  

26.      Holding the provision obligatory, the Court observed: "Judicial discretion when facts for its exercise  are present, has a mandatory import.  Therefore, when the sub-Divisional Magistrate,  Ratlam, has, before him, information and  evidence, which disclose the existence of a  public nuisance and, on the materials placed,  he considers that such unlawful obstruction or  nuisance should be removed from any public  place which may be lawfully used by the  public, he shall act.... This is a public duty  implicit in the public power to be exercised  on behalf of the public and pursuant to a  public proceeding. (emphasis supplied)

27.      We do not wish to refer to other cases on the point. We  are, however, in agreement with the observations of Earl  Cairns, L.J. in Julius referred to above wherein His Lordship  stated: "Where a power is deposited with a public  officer for the purpose of being used for the

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benefit of persons who are specifically pointed  out, and with regard to whom a definition is  supplied by the Legislature of the conditions  upon which they are entitled to call for its  exercise, that power ought to be exercised,  and the Court will require it to be  exercised." (See M/s. Dhampur Sugar Mills  Ltd. v. State of U.P. 2007(10) SCR 245)   28.     The use of the words ‘shall’ in a statute, though generally  taken in a mandatory sense, does not necessarily mean that in  every case it shall have that effect, that is to say, that unless  the words of the statute are punctiliously followed, the  proceeding or the outcome of the proceeding would be invalid.  On the other hand, it is not always correct to say that when  the word ‘may’ has been used, the statute is only permissible  or directory in the sense that non-compliance with those  provisions will not render the proceeding invalid.

29.     Words are the skin of the language. The language is the  medium of expressing the intention and the object that  particular provision or the Act seeks to achieve. Therefore, it is  necessary to ascertain the intention. The word ‘shall’ is not  always decisive. Regard must be had to the context, subject  matter and object of the statutory provision in question in  determining whether the same is mandatory or directory. No  universal principle of law could be laid in that behalf as to  whether a particular provision or enactment shall be  considered mandatory or directory. It is the duty of the court  to try to get at the real intention of the legislature by carefully  analysing the whole scope of the statute or section or a phrase  under consideration. The word ‘shall’, though prima facie  gives impression of being of mandatory character, it requires  to be considered in the light of the intention of the legislature  by carefully attending to the scope of the statute, its nature  and design and the consequences that would flow from the  construction thereof one way or the other. In that behalf, the  court is required to keep in view the impact on the profession,  necessity of its compliance; whether the statute, if it is  avoided, provides for any contingency for non-compliance; if  the word ‘shall’ is construed as having mandatory character,  the mischief that would ensure by such construction; whether  the public convenience would be subserved or public  inconvenience or the general inconvenience that may ensue if  it is held mandatory and all other relevant circumstances are  required to be taken into consideration in construing whether  the provision would be mandatory or directory. 30.     The question, whether a particular provision of a statute,  which, on the face of it, appears mandatory inasmuch as it  used the word ’shall’, or is merely directory, cannot be resolved  by laying down any general rule, but depends upon the facts  of each case particularly on a consideration of the purpose  and object of the enactment in making the provision. To  ascertain the intention, the court has to examine carefully the  object of the statute, consequence that may follow from  insisting on a strict observance of the particular provision and,  above all, the general scheme of the other provisions of which  it forms a part. The purpose for which the provision has been  made, the object to be attained, the intention of the legislature  in making the provision, the serious inconvenience or injustice  which may result in treating the provision one way or the  other, the relation of the provision to other consideration  which may arise on the facts of any particular case, have all to  be taken into account in arriving at the conclusion whether  the provision is mandatory or directory. Two main

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considerations for regarding a rule as directory are: (i) absence  of any provision for the contingency of any particular rule not  being complied with or followed, and (ii) serious general  inconvenience and prejudice to the general public would result  if the act in question is declared invalid for non-compliance  with the particular rule. 31.     It is well-settled that the use of word ‘may’ in a statutory  provision would not by itself show that the provision is  directory in nature. In some cases, the legislature may use the  word ‘may’ as a matter of pure conventional courtesy and yet  intend a mandatory force. In order, therefore, to interpret the  legal import of the word ‘may’, the court has to consider  various factors, namely, the object and the scheme of the Act,  the context and the background against which the words have  been used, the purpose and the advantages sought to be  achieved by the use of this word, and the like. It is equally  well-settled that where the word ‘may’ involves a discretion  coupled with an obligation or where it confers a positive  benefit to a general class of subjects in a utility Act, or where  the court advances a remedy and suppresses the mischief, or  where giving the words directory significance would defeat the  very object of the Act, the word ‘may’ should be interpreted to  convey a mandatory force.  As a general rule, the word ‘may’ is  permissive and operative to confer discretion and especially so,  where it is used in juxtaposition to the word ’shall’, which  ordinarily is imperative as it imposes a duty. Cases however,  are not wanting where the words ‘may’ ‘shall’, and ‘must’ are  used interchangeably. In order to find out whether these  words are being used in a directory or in a mandatory sense,  the intent of the legislature should be looked into along with  the pertinent circumstances. The distinction of mandatory  compliance or directory effect of the language depends upon  the language couched in the statute under consideration and  its object, purpose and effect. The distinction reflected in the  use of the word ‘shall’ or ‘may’ depends on conferment of  power. Depending upon the context, ’may’ does not always  mean may. ’May’ is a must for enabling compliance of  provision but there are cases in which, for various reasons, as  soon as a person who is within the statute is entrusted with  the power, it becomes his duty to exercise that power. Where  the language of statute creates a duty, the special remedy is  prescribed for non-performance of the duty.

32.      If it appears to be the settled intention of the legislature  to convey the sense of compulsion, as where an obligation is  created, the use of the word ’may’ will not prevent the court  from giving it the effect of Compulsion or obligation. Where the  statute was passed purely in public interest and that rights of  private citizens have been considerably modified and curtailed  in the interests of the general development of an area or in the  interests or removal of slums and unsanitary areas. Though  the power is conferred upon the statutory body by the use of  the word ’may’ that power must be construed as a statutory  duty. Conversely, the use of the term ’shall’ may indicate the  use in optional or permissive sense.  Although in general sense  ’may’ is enabling or discretional and ‘shall’ is obligatory, the  connotation is not inelastic and inviolate." Where to interpret  the word ‘may’ as directory would render the very object of the  Act as nugatory, the word ’may’ must mean ’shall’.

33.     The ultimate rule in construing auxiliary verbs like ‘may’  and ‘shall’ is to discover the legislative intent; and the use of  words ‘may’ and ’shall’ is not decisive of its discretion or  mandates. The use of the words ‘may’ and ‘shall’ may help the  courts in ascertaining the legislative intent without giving to

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either a controlling or a determinating effect. The courts have  further to consider the subject matter, the purpose of the  provisions, the object intended to be secured by the statute  which is of prime importance, as also the actual words  employed.

34.     Obviously where the legislature uses two words may and  shall in two different parts of the same provision prima facie it  would appear that the legislature manifested its intent on to  make one part directory and another mandatory.  But that by  itself is not decisive.  The power of court to find out whether  the provision is directory or mandatory remains unimpaired.

35.     One additional factor, which may not have an effect on  the appeal is to be noted. The First Appellate Court after  judgment of the High Court dated 4.2.2005 disposed of the  appeal and remitted the matter to the trial Court.  The stay  order of this Court was passed on 7.2.2005.

36.     It is to be noted that the High Court in the impugned  judgment has noted that if the Appellate Court is of the  opinion that if the evidence is insufficient to decide the issue,  only then the matter may be remitted to the trial Court.       

37.     Above being the position, the appeal by the respondents  before the Allahabad High Court has been rightly allowed.  In  any event, the order does not suffer from any infirmity to  warrant interference.  The appeal is dismissed.